www.elsblog.org - Bringing Data and Methods to Our Legal Madness

11 February 2018

A recent working paper, The Patent Enforcement Iceberg, illustrates nicely the strengths and limitations of survey work designed to "see" the legally "unseen." In it, Mark Lemley (Stanford) et al., begin by observing that while knowing "quite a bit about patent litigation,” what is comparably far less understood is the degree of patent assertions that take place “outside of [formal] litigation.” This scholarly impulse, addressing a common problem in empirical legal studies, seeks to gain an empirical foothold into legal activity that takes place outside of formal legal institutions. From methodological and research design standpoints, it is difficult overestimate the degree of difficulty incident to efforts seeking to explore legal activity that takes place "in the shadow of law."

The challenge in the patent enforcement area is particularly acute. As the authors note, "[t]he problem is that licensing negotiations and license deals that don’t result in litigation are almost invariably kept secret. The result is that patent litigation is like the proverbial tip of the iceberg – the observable piece sticking out of the water, but probably not all or even most of what there is. Various people have speculated that unlitigated (and therefore unobserved) assertions are a majority and probably as much as 90% of all patent enforcement. That is a real problem for those who make patent policy and for scholars and businesspeople who want to assess the true cost of patent enforcement.”

Exploiting an intentionally simple survey instrument, the authors find that "while patent litigation does not reflect everything that is going on, there was less unlitigated – and therefore unseen – patent enforcement than some of us had thought. Roughly one-third of all patent licensing efforts among our survey respondents end in litigation, significantly less than the 10% some had predicted. And, for the majority of respondents, about one half of the demands end in litigation. Our results allow us to get a handle on the actual size of the patent enforcement business and to try to estimate the total cost of responding to enforcement efforts.”

To be sure, such exploratory work, while important, is limited in critical ways. This paper analyzes patent assertions in a single year (2015) derived from a "convenience" sample of 68 companies with in-house counsel and active in the information technology field. The sample yielded only a 44.1% response rate. Thus, threats from selection bias, as the authors note, lurk ("Different companies – samples from different places – might well tell a somewhat different story"). To this end, the paper expressly promises that more expansive work is forthcoming.

02 February 2018

As empirical legal scholarship continues to expand, its expansion increasingly penetrates new and interesting legal spaces. Many of these new legal spaces, including, e.g., family law, include hotly-contested legal, political, and social issues. Clare Huntington's (Fordham) recent paper, The Empirical Turn in Family Law, seeks to develop a "framework to guide the use of this [empirical] evidence" in the family law space. For Huntington, a carefully constructed "framework" is necessary due to potential "perils" to family law doctrine and the regulation of families that an empirical turn may facilitate. The paper's abstract follows.

"Historically, the legal system justified family law’s rules and policies through morality, common sense, and prevailing cultural norms. In a sharp departure, and consistent with a broader trend across the legal system, empirical evidence increasingly dominates the regulation of families.

There is much to celebrate in this empirical turn. Properly used, empirical evidence in family law can help the state act more effectively and efficiently, unmask prejudice, and depoliticize contentious battles. But the empirical turn also presents substantial concerns. Beyond perennial issues of the quality of empirical evidence and the ability of legal actors to use it, there are more fundamental problems: Using empirical evidence focuses attention on the outcomes of legal rules, discouraging a debate about contested and competing values. Reliance on empirical evidence overlays a veneer of neutrality on normative judgments. And uncritically adopting evidence about present conditions without interrogating the role of historical discrimination that continues to disadvantage some families can replicate that discrimination.

Given the promise and peril of the empirical turn in family law, this Essay proposes a framework to guide the use of this evidence. The framework preserves space for debating multiple values and advises decisionmakers when to use empirical evidence, with particular attention to the dangers for nondominant families. The framework also recommends strengthening evidentiary gatekeeping and elevating the potential for legal scholarship to serve as a bridge from the broader research base to the courts. With this guidance in place, empirical evidence can take its rightful place as a useful but cabined tool in the legal regulation of families."